Wisconsin 2023-2024 Regular Session

Wisconsin Assembly Bill AB870 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 ASSEMBLY BILL 870
5	5	January 2, 2024 - Introduced by Representatives SINICKI, DRAKE, EMERSON,
6	6	JACOBSON, ORTIZ-VELEZ and STUBBS, cosponsored by Senator TAYLOR. Referred
7	7	to Committee on Health, Aging and Long-Term Care.
8	8	*AUTHORS SUBJECT TO CHANGE*
9	9	AN ACT to amend 146.81 (4); and to create 50.373, 146.83 (3f) (b) 3m. and 655.27
10	10	(1g) of the statutes; relating to: video recording of surgical procedures,
11	11	providing an exemption from emergency rule procedures, granting
12	12	rule-making authority, and providing a penalty.
13	13	Analysis by the Legislative Reference Bureau
14	14	This bill creates a requirement for hospitals, ambulatory surgical centers, or
15	15	any other place where surgical procedures are performed (surgical facilities) to offer
16	16	surgical patients the option to have their surgical procedures videotaped and
17	17	discharge instructions recorded. Surgical facilities must provide notice of the option
18	18	and all related procedures and conditions set forth in the bill. For purposes of the
19	19	bill, a surgical procedure is one for which a surgical or other invasive procedure is
20	20	performed upon a patient under conscious sedation, deep sedation, regional
21	21	anesthesia, or general anesthesia. If a patient makes a request to have a surgical
22	22	procedure recorded, the bill requires that the surgical facility, or its designee, record
23	23	the surgical procedure with both audio and color video. When recording of a surgical
24	24	procedure is requested, the facility must continuously record with color video and
25	25	audio all activity in the surgical suite from the time preparation for the surgery
26	26	begins until all activity related to the surgery, including cleanup, is complete. The
27	27	bill requires that the recording must also include any preoperative communication
28	28	regarding the surgical procedure between the surgical practitioner and the patient
29	29	and any surgical time out, regardless of where those communications take place. If
30	30	the surgical patient is incapacitated, the surgical facility is required to provide
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37	37	another authorized person with notice of the option for video recording, and that
38	38	person may request that a recording be made. Similarly, if the surgical patient is a
39	39	minor, the surgical facility must notify a parent, guardian, or legal custodian of the
40	40	option for video recording and allow that person to make a request for a recording
41	41	on behalf of the minor. A patient may also request that his or her discharge
42	42	instructions be recorded. The surgical facility may determine if these instructions
43	43	will be videotaped or audiotaped.
44	44	The bill also allows a physician or certain other individual who holds a valid
45	45	license or other credential that allows him or her to perform surgical procedures and
46	46	who is scheduled to perform a surgical patient's surgical procedure to request that
47	47	a recording be made. A health care provider who provides the patient with discharge
48	48	instructions may also request that those instructions, as provided, be recorded. A
49	49	surgical facility must comply with these requests so long as certain conditions are
50	50	met, including that the surgical patient or other person authorized to make a
51	51	decision on behalf of the patient does not object. Under the bill, in certain limited
52	52	emergency circumstances, surgical facilities are not required to provide the option
53	53	of recording or to comply with a request for recording. If the facility is not required
54	54	to comply with a request for recording of a surgical procedure due to an emergency,
55	55	the facility must still provide the patient with the option to have the discharge
56	56	instructions recorded.
57	57	In return for exercising the option to have a surgical procedure recorded, under
58	58	the bill, the surgical patient or another person on behalf of the patient may not
59	59	disclose the recording except to limited authorized individuals, unless
60	60	confidentiality is waived by the health care provider or surgical practitioner that is
61	61	a subject of the video recording. Video recordings of surgical procedures created
62	62	under this bill are otherwise treated as patient health care records and are subject
63	63	to the same protections as other patient health care records, including all criminal
64	64	and civil penalties for improper disclosure or destruction. The bill specifies that, once
65	65	a recording is complete, the surgical facility or its designee must preserve the
66	66	recording as part of the patient's health care record and keep a separate additional
67	67	copy, but delete other copies of the recording from the recording device and
68	68	elsewhere. The facility must retain the separate additional copy for at least seven
69	69	years after the recording was first made.
70	70	Under the bill, a surgical facility may charge a surcharge of up to $25 for each
71	71	recording of a surgical procedure. Upon request, the surgical facility must provide
72	72	to the patient, person authorized by the patient, or parent, guardian, or legal
73	73	custodian of the patient one copy of the recording without an additional charge.
74	74	Recordings under this bill are admissible as evidence in any civil or criminal action
75	75	or proceeding related to any alleged act or omission depicted in the recording. A
76	76	surgical patient may also request up to two free copies of his or her discharge
77	77	instructions—one for the patient, and one for another person designated by the
78	78	patient.
79	79	Under the bill, a surgical patient may complete an advance request for
80	80	recording, which permits an individual who is of sound mind and over the age of 18
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85	85	complete an advance request for a single specific surgical procedure or set of
86	86	discharge instructions, or for all future surgical procedures and discharge
87	87	instructions to which provisions of the bill would apply. An advance request must
88	88	be completed voluntarily, and must be in writing and signed and dated in the
89	89	presence of a witness over the age of 18. The advance request may be revoked at any
90	90	time.
91	91	The bill provides that a health care provider who knowingly refuses to comply
92	92	with a patient request for recording is subject to a forfeiture of up to $25,000 for each
93	93	violation. A surgical facility that fails to provide a required notice of the option for
94	94	recording, including information regarding the procedures, the fees, the conditions,
95	95	the surgical practitioner's request option, and the advance request option, is subject
96	96	to a forfeiture of up to $25,000 for each violation. The bill also provides penalties for
97	97	interference with an advance request for recording, and for unauthorized disclosure
98	98	of a recording.
99	99	Under this bill, the Department of Health Services is required to promulgate
100	100	rules establishing standards relating to the recording equipment and the recording.
101	101	DHS may promulgate additional rules as necessary to implement and administer the
102	102	provisions of the bill. The bill also allows DHS to grant limited extensions for
103	103	compliance with the requirements of the bill, if a facility provides evidence of a
104	104	compelling need, financial or otherwise.
105	105	Because this bill creates a new crime or revises a penalty for an existing crime,
106	106	the Joint Review Committee on Criminal Penalties may be requested to prepare a
107	107	report.
108	108	For further information see the state fiscal estimate, which will be printed as
109	109	an appendix to this bill.
110	110	The people of the state of Wisconsin, represented in senate and assembly, do
111	111	enact as follows:
112	112	SECTION 1. 50.373 of the statutes is created to read:
113	113	50.373 Video recording of surgical procedures. (1) DEFINITIONS. In this
114	114	section:
115	115	(a) “Conscious sedation” is a drug-induced depression of consciousness during
116	116	which a patient responds purposefully to verbal commands, either alone or
117	117	accompanied by light tactile stimulation.
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126	126	(b) “Deep sedation” is a drug-induced depression of consciousness during
127	127	which a patient cannot be easily aroused but responds purposefully following
128	128	repeated or painful stimulation.
129	129	(c) “Discharge instructions” means care instructions provided to a patient at
130	130	or near the time of a patient's exit or release from a surgical facility after a surgical
131	131	procedure.
132	132	(d) “General anesthesia" means a temporary status commonly produced by the
133	133	administration of certain intravenous drugs and inhaled gases that cause a patient
134	134	to be unconscious and unable to feel pain during a medical procedure.
135	135	(e) “Guardian” means the person named by the court having the duty and
136	136	authority of guardianship.
137	137	(f) “Health care provider" means a person or entity described under s. 146.81
138	138	(1) (a) to (p) and includes any surgical facility.
139	139	(g) “Incapacitated" means unable to receive and evaluate information
140	140	effectively or to communicate decisions to such an extent that an individual lacks the
141	141	capacity to manage his or her health care decisions.
142	142	(h) “Legal custodian” means a person, other than a parent or guardian, or an
143	143	agency to whom legal custody of a child has been transferred by a court, but does not
144	144	include a person who has only physical custody of the child.
145	145	(i) “Patient health care records" has the meaning given in s. 146.81 (4).
146	146	(j) “Regional anesthesia” means the use of local anesthetics to make a specific
147	147	part of the body numb to prevent pain and allow for completion of a surgical
148	148	procedure.
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174	174	SECTION 1
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176	176	(k) “Surgical facility" means a hospital, as defined in s. 50.33 (2), an ambulatory
177	177	surgical center, as defined in 42 CFR 416.2, or any other place where a surgical
178	178	procedure is performed.
179	179	(L) “Surgical patient" means a patient who is scheduled to undergo a surgical
180	180	procedure.
181	181	(m) “Surgical practitioner" means a physician, surgeon, or osteopath under s.
182	182	990.01 (28), an individual licensed to practice dentistry under ch. 447, and any other
183	183	individual who holds a valid license or other credential that allows him or her to
184	184	perform a surgical procedure.
185	185	(n) “Surgical procedure” means a surgical procedure for which a patient is
186	186	under conscious sedation, deep sedation, regional anesthesia, or general anesthesia.
187	187	“Surgical procedure” includes a colonoscopy or similarly invasive procedure if
188	188	performed under conscious sedation, deep sedation, regional anesthesia, or general
189	189	anesthesia.
190	190	(o) “Surgical time out” means a final verification of details relating to a surgery,
191	191	including at least confirmation of a surgical patient's identity, surgical site, and
192	192	planned procedure.
193	193	(2) OPTION FOR RECORDING. (a) 1. A surgical facility shall provide to a surgical
194	194	patient the option to have the surgical facility or the surgical facility's designee make
195	195	a video recording of the patient's surgical procedure. For purposes of any recording
196	196	of a surgical procedure made under this subdivision, the surgical facility or its
197	197	designee shall make a continuous color video recording, including both audio and
198	198	video and display of the time and date. The surgical facility or its designee may not
199	199	interrupt the video recording within the surgical suite once started. Separate
200	200	interactions outside of the surgical suite, including preoperative communications
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227	227	SECTION 1 ASSEMBLY BILL 870
228	228	and surgical time outs under subd. 2., if outside of the surgical suite, and discharge
229	229	instructions under subd. 3., if applicable, may be separately recorded. All areas of
230	230	the surgical suite, including entrances and exits, must be in view on the recording
231	231	and audible. The surgical facility or its designee shall begin the recording within the
232	232	surgical suite of a surgical procedure under this subdivision when preparation of the
233	233	surgical suite for that surgical patient's surgical procedure starts and continue the
234	234	recording through the period of the cleanup after that procedure and until all activity
235	235	in the surgical suite related to the procedure recorded is complete.
236	236	2. Any procedure recording made under this subsection shall include a
237	237	recording, conforming to the standards described in subd. 1., of any preoperative
238	238	communication regarding the surgical procedure between the surgical practitioner
239	239	and the surgical patient and any surgical time out, regardless of where the
240	240	preoperative communication or surgical time out takes place.
241	241	3. A surgical facility shall also provide to a surgical patient the option to have
242	242	his or her discharge instructions, as given by the patient's surgical practitioner or
243	243	other health care provider, recorded. If a patient chooses to have his or her discharge
244	244	instructions recorded, the recording may be audio only or videotaped, including
245	245	audio, at the option of the surgical facility.
246	246	(b) 1. A surgical facility shall notify a surgical patient of the option to have a
247	247	recording made under par. (a) and of the procedures, the fees, the conditions, the
248	248	surgical practitioner's request option, and the advance request option.
249	249	2. If the surgical patient is a minor child, the surgical facility shall notify the
250	250	minor child's parent, guardian, or legal custodian of the option to have a recording
251	251	made under par. (a) and of the procedures, the fees, the conditions, the surgical
252	252	practitioner's request option, and the advance request option.
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280	280	SECTION 1
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282	282	3. If a surgical patient is incapacitated, a surgical facility shall notify a person
283	283	authorized by the patient under s. 146.81 (5), if available, or, if not, a relative of the
284	284	patient of the option and information under subd. 1. and allow that person to make
285	285	a decision regarding whether to have a recording made under par. (a).
286	286	(c) A surgical practitioner who is scheduled to participate in a surgical patient's
287	287	surgical procedure may request that the procedure be video recorded under the
288	288	procedures described in this subsection. The surgical facility shall comply with the
289	289	surgical practitioner's request if all of the following are true:
290	290	1. The requesting surgical practitioner has informed the surgical patient or, if
291	291	the patient is a minor, a parent, guardian, or legal custodian, of the surgical
292	292	practitioner's request for video recording and the reason the surgical practitioner
293	293	has requested that recording. If the patient is incapacitated, the requesting surgical
294	294	practitioner shall inform a person authorized by the patient under s. 146.81 (5), if
295	295	available, or, if not, a relative of the patient.
296	296	2. The surgical patient or other person informed under subd. 1. does not object
297	297	to the video recording.
298	298	(d) A patient's surgical practitioner or other health care provider who will
299	299	administer a patient's discharge instructions may request that the patient's
300	300	discharge instructions, as given by the surgical practitioner or other health care
301	301	provider, be recorded under the procedures described in this subsection. The surgical
302	302	facility shall comply with the surgical practitioner's or other health care provider's
303	303	request if all of the following are true:
304	304	1. The requesting surgical practitioner or other health care provider has
305	305	informed the patient or, if applicable, a parent, guardian, legal custodian, person
306	306	authorized by the patient under s. 146.81 (5), or relative of the patient of the surgical
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333	333	SECTION 1 ASSEMBLY BILL 870
334	334	practitioner's or health care provider's request for recording and the reason the
335	335	surgical practitioner or other health care provider has requested that recording.
336	336	2. The surgical patient or, if applicable, the parent, guardian, legal custodian,
337	337	person authorized by the patient under s. 146.81 (5), or relative of the patient does
338	338	not object to the recording.
339	339	(e) 1. Except as otherwise provided under this subsection, no surgical patient
340	340	or person on behalf of a surgical patient may disclose, unless the surgical practitioner
341	341	or other health care provider that is a subject of the recording waives confidentiality,
342	342	the content of a recording created under this section except to health care providers
343	343	providing care to the surgical patient, to immediate family members or a person
344	344	authorized by the patient under s. 146.81 (5), or to an attorney or an attorney's staff
345	345	for the purpose of obtaining legal advice. If legal action relating to the surgical
346	346	procedure is taken, the surgical patient or an attorney for the surgical patient may
347	347	disclose the recording to additional individuals if necessary for the case, but the
348	348	recording shall be filed under seal if permitted by the court. In all other respects,
349	349	recordings under this section shall be treated as patient health care records.
350	350	2. Notwithstanding the restrictions on disclosure under this paragraph, a
351	351	surgical patient or a person on behalf of a surgical patient may disclose a recording
352	352	of the surgical patient's discharge instructions made under this section to one or
353	353	more persons designated by the surgical patient to assist the surgical patient with
354	354	postsurgical care, and one person designated by the surgical patient may receive a
355	355	free copy of the recording of the surgical patient's discharge instructions as set forth
356	356	under sub. (10).
357	357	3. Notwithstanding subds. 1. and 2. and sub. (10), a surgical facility or surgical
358	358	practitioner may, if authorization is granted under sub. (3), use a copy of a recording
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386	386	SECTION 1
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388	388	created under this section for teaching or research purposes outside the network of
389	389	the surgical facility and if the surgical patient's personal identifying information is
390	390	redacted or if the surgical patient or other person authorized to request or consent
391	391	to a recording under this section on behalf of the patient expressly consents, in
392	392	writing, to the use and disclosure. Notwithstanding any other provision of this
393	393	section, a surgical facility or surgical practitioner may, if not for teaching or research
394	394	purposes outside of the network of the surgical facility, be permitted to use a
395	395	recording made under this subsection without informed written confirmation under
396	396	sub. (3) if the disclosure is otherwise permitted under s. 146.82 or 146.83.
397	397	(3) WRITTEN CONFIRMATION. Before proceeding with a recording under sub. (2),
398	398	a surgical facility shall obtain from the surgical patient or other person authorized
399	399	to request or consent to a recording under sub. (2) on behalf of the patient,
400	400	confirmation, in writing, authorizing the recording of the surgical patient's surgical
401	401	procedure. If a surgical facility or surgical practitioner intends to use a recording as
402	402	described under sub. (2) (e) 3., the surgical facility shall provide written notice of that
403	403	proposed use to the surgical patient or other person authorized to request or consent
404	404	to a recording under sub. (2) on behalf of the patient, and obtain written
405	405	authorization of that use of the recording.
406	406	(4) EQUIPMENT AND TECHNICAL ASSISTANCE. A surgical facility shall have
407	407	available appropriate recording equipment and technical assistance as determined
408	408	by the department in rules promulgated under sub. (8) to comply with a request for
409	409	a recording of a surgical patient's surgical procedure or discharge instructions.
410	410	(5) MINORS. If a surgical patient is a minor child, a parent, guardian, or legal
411	411	custodian may request that a recording be made of the minor child's surgical
412	412	procedure or discharge instructions under sub. (2) (a).
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440	440	(6) EXCEPTION FOR EMERGENCIES. (a) Notwithstanding sub. (2), a surgical
441	441	facility is not required to provide the option of a video recording of a surgical
442	442	procedure or comply with a request for video recording under this section if the
443	443	surgical practitioner determines in the exercise of his or her professional judgment
444	444	that either of the following is true:
445	445	1. Immediate surgery is necessary to avert death.
446	446	2. Other circumstances exist such that video recording would cause a delay that
447	447	would create a serious risk of substantial and irreversible impairment of one or more
448	448	of the surgical patient's bodily functions.
449	449	(b) The surgical practitioner or other health care provider at the surgical
450	450	facility shall inform the surgical patient or, if applicable, other persons as described
451	451	under sub. (2) (b) of the medical indications supporting the surgical practitioner's
452	452	reasonable medical judgment that an emergency condition under par. (a) exists.
453	453	(c) If a surgical practitioner determines under par. (a) that an emergency exists
454	454	such that the surgical facility is not required to comply with a request for video
455	455	recording of a surgical procedure, the surgical facility shall provide the surgical
456	456	patient or, if applicable, other person under sub. (2) (b), with the option to have the
457	457	patient's discharge instructions recorded as provided under sub. (2) (a) 3.
458	458	(7) EXTENSIONS FOR FACILITY COMPLIANCE. The department may in its discretion
459	459	grant a surgical facility one or more 6-month extensions of the deadline for the
460	460	facility to comply with the requirements of this section, but may not grant more than
461	461	a total of 6 extensions. In order to qualify for an extension, a surgical facility shall
462	462	provide the department with evidence of a compelling need, financial or otherwise,
463	463	for additional time for compliance.
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490	490	SECTION 1
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492	492	(8) RULES. (a) The department shall promulgate rules establishing standards
493	493	for video recording of surgical procedures, recording of discharge instructions, and
494	494	the use of recording equipment in surgery and discharge settings to ensure such
495	495	recordings are professional and of sufficient quality to accurately portray what takes
496	496	place when discharge instructions are given or during a surgical procedure,
497	497	including who enters and leaves and a view of the patient without requiring close-up
498	498	views of the patient or the surgical procedure itself.
499	499	(b) In addition to the rules required under par. (a), the department may
500	500	promulgate rules, as necessary, to implement and administer this section, including
501	501	rules that address any of the following:
502	502	1. Establishing criteria and procedures for providing notice and the option for
503	503	recording under sub. (2).
504	504	2. Implementing the requirements regarding preservation and destruction of
505	505	recordings under sub. (9).
506	506	3. Establishing standards, procedures, and forms for advance requests for
507	507	recording under sub. (12).
508	508	4. Implementing the forfeiture procedures under sub. (14).
509	509	(9) PRESERVATION AND DESTRUCTION. (a) After the video recording of a surgical
510	510	procedure under this section is complete, the surgical facility shall promptly do all
511	511	of the following:
512	512	1. Preserve the recording as part of the surgical patient's health care record,
513	513	which may include a copy in the patient's health care record and any electronic
514	514	backup of health care records kept in the normal course of business.
515	515	2. Preserve a separate additional electronic copy of the recording.
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541	541	SECTION 1 ASSEMBLY BILL 870
542	542	3. Except as provided under subds. 1. and 2., delete copies of the recording from
543	543	the recording device or any other electronic device, including any memory card or
544	544	flash drive.
545	545	(b) The surgical facility shall preserve the copy of the recording in the surgical
546	546	patient's health care record, including any backup copy, as it would other records in
547	547	the patient's health care record as required by law. The surgical facility or its
548	548	designee shall retain the additional copy required under par. (a) 2. for at least 7 years
549	549	after the recording was first made.
550	550	(10) FEES. A surgical facility may charge a surcharge of up to $25 for each
551	551	recording made of a surgical procedure or discharge instructions to offset the costs
552	552	of creating and providing a recording. The surgical facility shall provide, upon
553	553	request by the surgical patient, a person authorized by the surgical patient under s.
554	554	146.81 (5), or a parent, guardian, or legal custodian of a minor surgical patient, one
555	555	copy of each recording made under sub. (2) (a) 1. for which a request is made without
556	556	additional charge. The surgical facility shall provide to the surgical patient, upon
557	557	request by the surgical patient, one free copy of the discharge instructions for the
558	558	surgical patient and up to one additional free copy of the discharge instructions for
559	559	another person designated by the surgical patient. The surgical facility may charge
560	560	fees as described under s. 146.83 (3f) (b) 3m. for additional copies of the recordings.
561	561	(11) ADMISSIBILITY OF RECORDING. For purposes of admissibility in a civil or
562	562	criminal action or proceeding, a recording created under this section is a patient
563	563	health care record under s. 146.81 and shall be treated as a health care record under
564	564	ss. 908.03 (6m) and 909.02 (11). If certified by an appropriate record custodian,
565	565	recordings under this section shall be admissible as evidence in any civil or criminal
566	566	action or proceeding related to any alleged act or omission depicted in the recording.
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594	594	SECTION 1
595	595	ASSEMBLY BILL 870
596	596	(12) ADVANCE REQUESTS FOR RECORDING. (a) Definition. In this subsection,
597	597	“principal" means an individual who executes an advance request for surgical
598	598	procedure recording instrument.
599	599	(b) Advance requests for recording. 1. An individual who is of sound mind and
600	600	has attained age 18 may voluntarily execute an advance request for surgical
601	601	procedure recording instrument. An individual for whom an adjudication of
602	602	incompetence and appointment of a guardian of the individual is in effect in this state
603	603	is presumed not to be of sound mind for purposes of this subsection and for executing
604	604	an advance request for surgical procedure recording instrument.
605	605	2. The desires of a principal who is not incapacitated supersede the effect of his
606	606	or her advance request for surgical procedure recording instrument at all times.
607	607	3. The department shall prepare and provide copies of an advance request for
608	608	surgical procedure recording instrument and accompanying information for
609	609	distribution in quantities to health care professionals, hospitals and other surgical
610	610	facilities, county clerks, and local bar associations and individually to private
611	611	persons. The department shall determine the form of the request form and
612	612	accompanying instructions. The department shall include on the form an option for
613	613	requesting the recording of a specific, single surgical procedure, an option for
614	614	requesting the recording of discharge instructions after a surgical procedure, an
615	615	option for requesting the recording of all future surgical procedures under this
616	616	section, and an option for requesting the recording of discharge instructions after all
617	617	future surgical procedures under this section. The department shall also include on
618	618	the form a statement to the effect that a principal who exercises the option for
619	619	recording agrees that, unless the surgical practitioner involved waives
620	620	confidentiality, a recording created under this section is confidential and the
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647	647	SECTION 1 ASSEMBLY BILL 870
648	648	principal or a person on behalf of the principal may disclose it only to health care
649	649	providers providing care to the principal, to immediate family members or a person
650	650	authorized by the patient under s. 146.81 (5), or to an attorney or an attorney's staff
651	651	for the purpose of obtaining legal advice, and if legal action relating to the surgical
652	652	procedure is taken, the principal or an attorney on behalf of the principal may
653	653	disclose the recording to additional individuals if necessary for the case, but it must
654	654	be filed under seal if permitted by the court. The form shall also include a statement
655	655	that the principal or a person on behalf of a principal may disclose the principal's
656	656	discharge instructions to one or more persons designated by the principal to assist
657	657	with postsurgical care, and a statement that a surgical facility or surgical
658	658	practitioner may, if express authorization is granted by the principal in writing, use
659	659	a copy of a recording for teaching or research purposes outside of the network of the
660	660	surgical facility if the principal's personal identifying information is redacted or if
661	661	the principal or other person authorized on behalf of the principal expressly
662	662	consents, in writing, to the use and disclosure.
663	663	(c) Advance request for recording; execution. A valid advance request for
664	664	surgical procedure recording instrument shall be all of the following:
665	665	1. In writing.
666	666	2. Dated and signed by the principal or by an individual who has attained age
667	667	18 at the express direction and in the presence of the principal.
668	668	3. Signed in the presence of a witness who is an individual who has attained
669	669	age 18.
670	670	4. Voluntarily executed.
671	671	(d) Revocation. A principal may revoke his or her advance request for surgical
672	672	procedure recording instrument at any time by doing any of the following:
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700	700	SECTION 1
701	701	ASSEMBLY BILL 870
702	702	1. Canceling, defacing, obliterating, burning, tearing, or otherwise destroying
703	703	the advance request for surgical procedure recording instrument or directing
704	704	another in the presence of the principal to so destroy the advance request for surgical
705	705	procedure recording instrument.
706	706	2. Executing a statement, in writing, that is signed and dated by the principal,
707	707	expressing the principal's intent to revoke the advance request for surgical procedure
708	708	recording instrument.
709	709	3. Verbally expressing the desire to revoke the advance request for surgical
710	710	procedure recording instrument in the presence of a witness.
711	711	4. Executing a subsequent advance request for surgical procedure recording
712	712	instrument that replaces an existing advance request for surgical procedure
713	713	recording instrument.
714	714	(13) PENALTIES. (a) Except as provided under sub. (6), a surgical practitioner
715	715	or other health care provider who knowingly refuses to comply with a surgical
716	716	patient's request to have his or her surgical procedure or discharge instructions
717	717	recorded may be subject to a forfeiture of not more than $25,000 for each violation.
718	718	(b) Except as provided under sub. (6), a surgical facility that fails to provide a
719	719	notice required under sub. (2) (b) may be subject to a forfeiture of not more than
720	720	$25,000 for each violation.
721	721	(c) 1. Any person who negligently interferes with or violates a surgical patient's
722	722	advance request for surgical procedure recording instrument created under sub. (12)
723	723	without the consent of the principal shall be subject to a fine of at least $500 but not
724	724	more than $1,000.
725	725	2. Any person who intentionally interferes with or violates a surgical patient's
726	726	advance request for surgical procedure recording instrument created under sub.
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753	753	SECTION 1 ASSEMBLY BILL 870
754	754	(12), including intentionally concealing, canceling, defacing, obliterating, damaging,
755	755	or destroying the instrument without the consent of the principal may be fined not
756	756	more than $5,000.
757	757	(d) 1. For purposes of this paragraph, “disclosure” means to effect the provision
758	758	of access to, or the release, transfer, or divulging in any manner of, information
759	759	outside those persons or entities authorized under in this section.
760	760	2. Except as otherwise authorized under this section, if a surgical practitioner
761	761	or other health care provider discloses a recording made under this section, the
762	762	standards and penalties for violations relating to patient health care records
763	763	described under s. 146.84 shall apply.
764	764	3. A surgical patient, or another person on behalf of a surgical patient, who
765	765	intentionally discloses a recording made under this section in violation of sub. (2) (e)
766	766	may be fined not more than $3,000 per violation. If a person affirmatively discloses
767	767	a recording made under this section on a social media platform, that disclosure shall
768	768	constitute a single violation, regardless of whether the disclosure is subsequently
769	769	redisclosed by other social media participants. Each subsequent disclosure on a
770	770	separate platform shall be considered a separate violation.
771	771	4. Whoever threatens, with intent to extort money or any pecuniary advantage
772	772	whatsoever, or with intent to compel the person so threatened to do any act against
773	773	the person's will, to disseminate or to communicate to anyone, or, except as otherwise
774	774	authorized under this section, does disseminate or communicate to anyone,
775	775	information related to a recording under this section is guilty of a Class I felony. For
776	776	the purpose of this subdivision, “information" has the meaning given in s. 943.31.
777	777	(14) FORFEITURE PROCEDURE. (a) The department may directly assess
778	778	forfeitures provided for under sub. (13). If the department determines that a
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806	806	SECTION 1
807	807	ASSEMBLY BILL 870
808	808	forfeiture should be assessed for a particular violation, the department shall send a
809	809	notice of assessment to the violator. The notice shall specify the amount of the
810	810	forfeiture assessed and the violation and the statute or rule alleged to have been
811	811	violated, and shall inform the violator of the right to a hearing under par. (b).
812	812	(b) A violator may contest an assessment of a forfeiture by sending, within 30
813	813	days after receipt of notice under par. (a), a written request for a hearing under s.
814	814	227.44 to the division of hearings and appeals created under s. 15.103 (1). The
815	815	administrator of the division may designate a hearing examiner to preside over the
816	816	case and recommend a decision to the administrator under s. 227.46. The decision
817	817	of the administrator of the division shall be the final administrative decision. The
818	818	division shall commence the hearing within 60 days after receipt of the request for
819	819	a hearing and shall issue a final decision within 30 days after the close of the hearing.
820	820	Proceedings before the division are governed by ch. 227. In any petition for judicial
821	821	review of a decision by the division, the party, other than the petitioner, who was in
822	822	the proceeding before the division shall be the named respondent.
823	823	(c) All forfeitures shall be paid to the department within 30 days after receipt
824	824	of notice of assessment or, if the forfeiture is contested under par. (b), within 30 days
825	825	after receipt of the final decision after exhaustion of administrative review, unless
826	826	the final decision is appealed and the order is stayed by court order. The department
827	827	shall remit all forfeitures paid to the secretary of administration for deposit in the
828	828	injured patients and families compensation fund under s. 655.27.
829	829	(d) The attorney general may bring an action in the name of the state to collect
830	830	any forfeiture imposed under sub. (13) if the forfeiture has not been paid following
831	831	the exhaustion of all administrative and judicial reviews. The only issue to be
832	832	contested in any such action shall be whether the forfeiture has been paid.
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859	859	SECTION 2 ASSEMBLY BILL 870
860	860	SECTION 2. 146.81 (4) of the statutes is amended to read:
861	861	146.81 (4) “Patient health care records" means all records related to the health
862	862	of a patient prepared by or under the supervision of a health care provider; all
863	863	recordings under s. 50.373 related to a surgical patient; and all records made by an
864	864	ambulance service provider, as defined in s. 256.01 (3), an emergency medical
865	865	services practitioner, as defined in s. 256.01 (5), or an emergency medical responder,
866	866	as defined in s. 256.01 (4p), in administering emergency care procedures to and
867	867	handling and transporting sick, disabled, or injured individuals. “Patient health
868	868	care records" includes billing statements and invoices for treatment or services
869	869	provided by a health care provider and includes health summary forms prepared
870	870	under s. 302.388 (2). “Patient health care records" does not include those records
871	871	subject to s. 51.30, reports collected under s. 69.186, records of tests administered
872	872	under s. 252.15 (5g) or (5j), 343.305, 938.296 (4) or (5) or 968.38 (4) or (5), records
873	873	related to sales of pseudoephedrine products, as defined in s. 961.01 (20c), that are
874	874	maintained by pharmacies under s. 961.235, fetal monitor tracings, as defined under
875	875	s. 146.817 (1), or a pupil's physical health records maintained by a school under s.
876	876	118.125.
877	877	SECTION 3. 146.83 (3f) (b) 3m. of the statutes is created to read:
878	878	146.83 (3f) (b) 3m. Except as provided in s. 50.373, for a copy of a recording of
879	879	a surgical procedure or discharge instructions, $25 per copy.
880	880	SECTION 4. 655.27 (1g) of the statutes is created to read:
881	881	655.27 (1g) DEPOSIT OF FORFEITURES. Forfeitures paid under s. 50.373 (13) shall
882	882	be deposited in the fund under sub. (1).
883	883	SECTION 5.0Nonstatutory provisions.
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910	910	SECTION 5
911	911	ASSEMBLY BILL 870
912	912	(1) EMERGENCY RULES. Using the procedure under s. 227.24, the department of
913	913	health services shall promulgate the rules required under s. 50.373 for the period
914	914	before the effective date of the permanent rules promulgated under s. 50.373 but not
915	915	to exceed the period authorized under s. 227.24 (1) (c), subject to extension under s.
916	916	227.24 (2). Notwithstanding s. 227.24 (1) (a), (2) (b), and (3), the department of health
917	917	services is not required to provide evidence that promulgating a rule under this
918	918	subsection as an emergency rule is necessary for the preservation of the public peace,
919	919	health, safety, or welfare and is not required to provide a finding of emergency for a
920	920	rule promulgated under this subsection. Notwithstanding s. 227.24 (1) (e) 1d., the
921	921	department of health services is not required to prepare a statement of the scope of
922	922	the rules promulgated under this subsection. Notwithstanding s. 227.24 (1) (e) 1g.,
923	923	the department of health services is not required to present the rules promulgated
924	924	under this subsection to the governor for approval.
925	925	SECTION 6.0Effective dates. This act takes effect on the first day of the 13th
926	926	month beginning after publication, except as follows:
927	927	(1) SECTION 5 (1) of this act takes effect on the day after publication.
928	928	(END)
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